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The protester challenged an order made under an FSS contract. The government argued the protester was not an interested party because it did not hold an FSS contract. The protester argued that even if it didn’t hold an FSS contract, it was an interested party because if the government had not issued the order under the FSS program, the company would have submitted a competitive proposal. GAO rejected the protester’s argument and dismissed the protest. Only FSS holders can challenge orders under an FSS contract. The protester did not hold an FSS contract. Even if it would have submitted a proposal under another procurement vehicle, its interest in the procurement was too remote to maintain a protest.

Intellectix Corporation, GAO B-420552 et al.

Background

For several years, Intellectix Corporation was a subcontractor to NTT Federal Services on a contract to provide IT services to the Department of Justice. The task order had been awarded to NTT under GSA’s Federal Supply Schedule program

In 2021, Intellectix’s subcontract with NTT ended. Intellectix advised NTT that it would not enter into a subcontract on the expected follow-on contract. Rather, Intellectix wanted to compete as prime contractor for the follow-on.

As NTT’s contract was about to expire, DOJ explored different procurement vehicles for the requirement. But the agency never settled on one and ended up issuing another order to NTT under the company’s FSS contract. DOJ issued a limited sources justification, which explained that it was issuing a new order to NTT to ensure continuity of mission critical services until it conducted a new follow-on procurement. 

Intellectix filed a protest, challenging the order issued to NTT.

Legal Analysis

Only holders of an FSS contract have standing to challenge orders issued under the FSS contract. DOJ argued that Intellectix did not hold the IT FSS contract under which it had issued the order to NTT. Thus, Intellectix was not an interested party to challenge the award to NTT.

Intellectix argued that it had an economic interest in the procurement because it had been denied an opportunity to compete. Had the agency used a different procurement vehicle in lieu of the FSS schedule, Intellectix contended, it would have submitted a competitive proposal.

GAO rejected Intellectix’s argument. The FSS ordering procedures satisfy the requirements for full and open competition. Thus, DOJ’s decision to limit the pool of vendors to holders of the FSS contacts was legally permissible and satisfied the competition requirements even though Intellectix was unable to compete.

Intellectix is represented by Aron C. Beezley, Patrick R. Quigley, and Nathaniel J. Greeson of Bradley Arant Boult Cummings LLP. The intervenor, NTT Data Federal Services, is represented by Mcihael McGill, Stuart W. Turner, and Jessica L. Nejberger of Arnold & Porter Kaye Scholer LLP. The agency is represented by Kristen B. Han and Jessica R. Toplin of the Department of Justice. GAO attorneys Michael PGrogan and Edward Goldstein participated in the preparation of the decision.